FBI Hides Its Surveillance Techniques From Federal Prosecutors Because It's Afraid They'll Become Defense Lawyers

from the code-of-silence dept

Mon, Apr 25th 2016 9:31am — Tim Cushing

We know the FBI isn't willing to share its investigative techniques with judges. Or defendants. Or the general public. Or Congress. The severely restrictive NDAs it forced law enforcement agencies to sign before allowing them to obtain IMSI catchers is evidence of the FBI's secrecy. Stingray devices were being used for at least a half-decade before information starting leaking into the public domain.

The FBI doesn't want to hand over details on its hacking tools. Nor does it want to discuss the specifics of the million-dollar technique that allowed it to break into a dead terrorist's phone (which held nothing of interest).

USA Today's Brad Heath has obtained documents showing the FBI's tech secrecy extends even further than its nominal opponents (judges, defense lawyers, defendants). Its secrecy even involves freezing out other players on the same team.

A supervisor also cautioned the bureau’s “technically trained agents” in a 2003 memo not to reveal techniques for secretly entering and bugging a suspect’s home to other agents who might be forced to reveal them in court. “We need to protect how our equipment is concealed,” the unnamed supervisor wrote.

The records, released this year as part of a Freedom of Information Act lawsuit, offer a rare view of the extent to which the FBI has sought to keep its most sensitive surveillance capabilities secret, even from others within federal law enforcement.

Yes, the FBI is so determined to keep its techniques secret that it won't even share it with high-ranking prosecutors, like Assistant US Attorneys (AUSAs). But it gets even better. The reason stated in the memo for locking out AUSAs is schadenfreuderiffic.

In case you can't see or read the picture above, here's what the memo says:

Over the past few months, ERF [Engineering Research Facility] has expressed concern about Tech Agents revealing technical details to Case Agents and especially to AUSAs. There have been several instances of AUSAs becoming familiar with our techniques, then resigning and becoming defense lawyers. There also is concern about retiring Agents performing investigative work for defense counsel (i.e. right here in MP).

One conclusion that could be drawn from AUSAs "becoming familiar" with FBI surveillance techniques, then switching sides to work as defense lawyers, is that the FBI's techniques are so intrusive and pervasive that AUSAs no longer find it conscionable to act on the behalf of the FBI.

That's not the only damning paragraph in the two-page set of responsive documents. There's also this, which again shows the FBI openly encourages obfuscation and omission in federal courtrooms.

Over the past week, I have received two ECs [electronic communications] form the field which describe in GREAT detail surreptitious entries and special project concealments installed in the target locations. These ECs describe the equipment concealed, item in which the equipment was concealed, and where the concealments were placed. These ECs were drafted by case agents, uploaded in ACS, and placed in the case file.

TTAs [technically trained agents] should not be providing such detail to case agents. One reason TTAs do not testify is to protect our trade craft. If the case agents have this information, they will be required to reveal it during cross examination at trial. Also, an AUSA may require the EC be turned over during discovery before trial. We need to protect how our equipment is concealed and where our is concealed.

It is sufficient for the case agent to simple state that, pursuant to a court order, equipment was installed in the target location.

So, the FBI will hide information from their own case agents in order to prevent defendants from obtaining the details of the surveillance used to build a case against them. Needless to say, preventing the defense from obtaining these details also prevents judges and juries from hearing them and using those to weigh the Constitutionality of the techniques.

This secrecy undercuts defendants' rights by denying them the opportunity to challenge the evidence or the methods used to obtain it. It also blows right by the Fourth Amendment by obfuscating the techniques used, a process that begins with search warrant affidavits that deliberately leave out essential details in order to protect the FBI's surveillance secrets. The FBI's cavalier attitude towards the rights of Americans traces back to the days of J. Edgar Hoover. While the agency has moved ahead in terms of technical prowess, the underlying "ends justifies the means" attitude appears unchanged.

FBI-Technical-Memos (PDF)FBI-Technical-Memos (Text)

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Filed Under: defense lawyers, fbi, prosecutors, secrets, surveillance

25 Comments

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Reader Comments

The First Word

“

A nation with secret laws, secret courts, secret police, secret techniques that they hide by lying about them.

Its really hard to pretend people are able to examine the evidence & confront their accusers when they hide it from the prosecution so avoid triggering Brady violations. If the prosecutor doesn't know, no harm to foul.

Our secret police using secret methods have decided you are guilty, good luck in court trying to unravel the parallel construction we use to keep everything hidden from view.

—That Anonymous Coward

”

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That Anonymous Coward (profile), 25 Apr 2016 @ 9:40am

A nation with secret laws, secret courts, secret police, secret techniques that they hide by lying about them.

Its really hard to pretend people are able to examine the evidence & confront their accusers when they hide it from the prosecution so avoid triggering Brady violations. If the prosecutor doesn't know, no harm to foul.

Our secret police using secret methods have decided you are guilty, good luck in court trying to unravel the parallel construction we use to keep everything hidden from view.
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dfed (profile), 25 Apr 2016 @ 9:46am

"Protect our trade craft" is a statement a surveillance outfit, not a law enforcement agency, makes. That's the terrifying disclosure: The FBI just admitted they aren't interested in law enforcement, they are interested in espionage.
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Anonymous Coward, 25 Apr 2016 @ 10:01am

Re:
Yep, A complete and utterly criminal attack upon the constitution every time it happens.

Not only should anyone caught the nets of this shit be set free with prejudice, all of the departments involved should be aggressively charged with Kidnapping, Abuse of Authority, illegal search and seizure, and outright dereliction of duty & Terrorism!!!
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Roger Strong (profile), 25 Apr 2016 @ 10:14am

Waiting for Ken White's response....
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That One Guy (profile), 25 Apr 2016 @ 10:26am

"Wait, are we... the bad guys?"
Just a thought, but if you feel that you need to hide how you go about something due to worrying that if the people who work for you find out they might leave and start actively working against you that might be an indicator that you're doing something wrong. Just maybe.
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That One Guy (profile), 25 Apr 2016 @ 10:28am

Re:
Yeah, the fact that they are willing to drop cases rather than admit how they got a particular bit of evidence shows that they value keeping the ability to gather information over actually stopping crimes.
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Anonymous Coward, 25 Apr 2016 @ 10:29am

Re: "Wait, are we... the bad guys?"
Time to start putting skulls on everything.
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Anonymous Coward, 25 Apr 2016 @ 10:44am

If you have nothing to hide, you have nothing to fear
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Christenson, 25 Apr 2016 @ 10:52am

A retired prosecutor...like Popehat's Ken White maybe?
becoming a defense advocate. Prime example.
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FBI, 25 Apr 2016 @ 11:06am

Re: A retired prosecutor...like Popehat's Ken White maybe?
Exactly! One of them is bad enough, we don't want more popping up!
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DannyB (profile), 25 Apr 2016 @ 12:21pm

Secret Investigative Techniques
Add Secret Investigative Techniques to the list of what America has become.

Secret Evidence, which the defendant cannot see.
Secret Courts.
Secret Trials in secret courts.
Secret Arrests. (in the middle of the night)
Secret Laws.
Secret Interpretations of laws.
Secret Convictions.
Secret Prisons. (are they all on foreign soil?)
Secret Torture.

It sounds like a list of what we were fighting against in the previous century.
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DannyB (profile), 25 Apr 2016 @ 12:26pm

Re: Re: A retired prosecutor...like Popehat's Ken White maybe?
Why do we even bother with providing a public defenders office?

Why should the guilty be allowed to defend their guilt in court? It's a huge waste of time, money and effort that could have been used for investigating pr0n or really good drugs.
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DannyB (profile), 25 Apr 2016 @ 12:29pm

Re:
It seems like the founders of the US had the idea that you should not need to hide anything . . .

. . . because the government cannot just look into the details of your personal life without a good reason that justifies a warrant.

What were they thinking?
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DannyB (profile), 25 Apr 2016 @ 12:33pm

Re: Re:
What follows from what you say is that while they are not interested in actually stopping crimes, they are interested in successful prosecutions.

That's not a problem. There is a whole country full of people that can be prosecuted for something. Just pick someone. Or entrap someone. Just keep the investigative techniques a secret.
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James Comey, 25 Apr 2016 @ 12:47pm

Good News Everybody!
Dear Staff:

It is my pleasure to inform everyone that the FBI will from this point forward be covering 100% death and funeral expenses for all retired agents, support staff, and contractors. This benefit is being put in place to ensure that our new 'blood in, blood out' policy is equitable and fair.

Have a great weekend,
J.C. (No, the other one. People confuse us all the time :)
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Uriel-238 (profile), 25 Apr 2016 @ 1:06pm

Are we the baddies?
Time to start putting skulls on everything.

If that's a reference to this, it deserves a link.

The live version deserves a look as well.
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Uriel-238 (profile), 25 Apr 2016 @ 1:08pm

Secret Prisons
are not all on foreign soil.

We reserve special cells in maximum security prisons for our folks in iron masks.
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Roger Strong (profile), 25 Apr 2016 @ 1:22pm

Re: Secret Prisons
Well sure. Consider American lawyer and veteran Brandon Mayfield. After the 2004 Madrid train bombings a *partial* fingerprint found on a bag *somewhat* matched his own from veteran's records. Despite Spanish officials telling the FBI that it wasn't a match, the FBI didn't just arrest him; they "disappeared" him. (Lied to the judge about the case against him, and later lied about where he was being held.)

He was arrested as a "material witness", so he could be held as long as they wanted without charging him. And of course they raided his home and carted off his and his family's belongings.
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Anonymous Coward, 25 Apr 2016 @ 5:34pm

I'm not surprised at all by this. The government hates due process and they will try anything to get out of having to discover how they got their evidence. It's why the FBI has a poor track record and why a lot of their cases routinely not just get thrown out of court, but also find defendants routinely getting released due to discovery violations.
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Anonymous Coward, 25 Apr 2016 @ 7:05pm

The FBI are terrorists
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Anonymous Coward, 25 Apr 2016 @ 7:10pm

Re: Secret Investigative Techniques
probably stems from incorporating all those surviving nazi top brass and scientists into the military and political structure of America in return for their information and secrets.
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Jumping Jupiter (profile), 26 Apr 2016 @ 1:30pm

Secret Surveillance
No one likes the way this sounds that there should be such secret surveillance going on around them, but this secrecy the fbi enjoys does prevent the bad guys from knowing all things surveillance that is swarming around them, right?
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John Fenderson (profile), 28 Apr 2016 @ 8:33am

Re: Secret Surveillance
It does make it more difficult. But my response to that is "so?"

I would much rather live in a free nation where some criminals manage to get away with their crimes than to live in a tyranny where criminals are always caught.
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Anonymous Coward, 1 May 2016 @ 1:15pm

Re:
"Protect our trade craft" is a statement a surveillance outfit, not a law enforcement agency, makes. That's the terrifying disclosure: The FBI just admitted they aren't interested in law enforcement, they are interested in espionage.

Yeah, the FBI now considers itself to be an espionage agency with added law enforcement powers.
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KissMyWookiee (profile), 2 May 2016 @ 8:59am

Re: Trade Craft = Espionage
That's exactly what I scrolled down to comment on myself.

If they refer to their techniques as "trade craft" then they consider themselves as spies spying on the American people.

...And they wonder why people are evolving an "Us vs Them" regard to Federal agencies. It's not so much that the people are developing those feelings all by themselves, but rather the people are adopting the sentiments that the Federal agencies project against the people.
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